Krushnarao S/O Laxmanrao ... vs Shaligram S/O Bapurao Shrungure ...
2016 Latest Caselaw 4965 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                           
                    NAGPUR BENCH, NAGPUR




                                                   
                        Second Appeal No.273 of 1995

      Krushnarao s/o Laxmanrao Shingnad,
      Aged about 61 years,
      Occupation - Pensioner,




                                                  
      Resident of Umari,
      Tq. & Distt. Akola.                              ... Petitioner


           Versus




                                        
                             
      Shaligram s/o Bapurao Shrungare,
      sinde deceased, by his LRs.:
                            
      1(a)     Sau. Suman wd/o Shaligram
               Shrungare,
               Aged 48 years,
               Occupation - Housewife.
      


      1(b)     Sanjay s/o Shaligram Shrungare,
               Aged about 34 years,
   



               Occupation - Service.

      1(c)     Nandu s/o Shaligram Shrungare,
               Aged about 32 years,





               Occupation - Service.

               1(a) to 1(c) are residents of
               Revenue Colony, Ratanlal Plot,
               Akola, Tah. and Distt. Akola.





      1(d)     Chitra @ Bali Ganesh @ Ashok
               Bargat,
               Aged Major,
               R/o Gadegaon Road,
               Near Tahsil Office,
               Old Court, Telhara,




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               Tah. Telhara, District Akola.                    ... Respondents




                                                                                      
                                                              
      Shri M.G. Sarda, Advocate for Appellant.
      Shri J.B. Gandhi, Advocate for Respondent Nos.1(a) to 1(d).


                   Coram : R.K. Deshpande, J.

Dated : 25th August, 2016

Oral Judgment :

1. In Special Civil Suit No.102 of 1991, the Trial Court passed a

decree for delivery of possession of the suit property based on title

against the respondent-defendant and directed refund of an amount of

Rs.45,000/- paid by the respondent-defendant to the

appellant-plaintiff for purchase of the suit property. Regular Civil

Appeal No.311 of 1991 was allowed by the lower Appellate Court on

21-4-1995 and the decree passed by the Trial Court has been set aside

and the suit is dismissed. Hence, the original plaintiff is before this

Court in this second appeal.

2. On 10-5-1980, an agreement to sell was executed by the

plaintiff in favour of the defendant for a total consideration of

Rs.45,000/-. The defendant paid the entire amount and the plaintiff

also delivered the possession of the suit property to the defendant.

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One of the conditions in the agreement was that the plaintiff was

required to obtain the permission of the Collector for sale of the suit

property within a period of two years, i.e. on or before 1-6-1982. It

was further agreed that even if such permission is not obtained up to

that date, the defendant shall continue to remain in possession of the

suit property, but if the agreement is required to be cancelled, then the

plaintiff shall refund the amount of Rs.45,000/- to the defendant, who

shall re-deliver the possession of the suit property to the plaintiff.

3. It is the finding recorded by the Courts below that such

permission was sought by the plaintiff, but it was rejected by the

Collector. It has also come on record that the defendant had applied

for grant of such permission, but the said application was also

rejected. The Trial Court recorded the findings that the defendant has

failed to establish that there was no propriety to obtain the permission

from the Government for execution of the sale-deed, and that it has

not been proved that the plaintiff has intentionally failed to apply to

the Collector for grant of permission within a stipulated period. The

lower Appellate Court has reversed both these findings, and it is held

that the plaintiff has purposefully failed to obtain the permission from

the competent authority within a stipulated time, as was agreed

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between the parties. The lower Appellate Court has also dismissed the

suit as barred by the law of limitation, as contained in Article 54 of the

Limitation Act.

4. This Court admitted the second appeal on 24-8-1995 on the

substantial question of law :

" Whether the Court below was right in relying upon

Article 54 and not 65 of the Limitation Act?"

5. After hearing the learned counsels appearing for the parties,

it seems that the defendant wanted to raise a plea of protection of his

possession over the suit property under Section 53-A of the Transfer of

Property Act, 1882 on the basis of the pleadings, so claimed to have

been made in the written statement. Hence, the following additional

substantial question of law is framed :

" Whether the defendant is entitled to protection of

possession under Section 53-A of the Transfer of Property Act, 1882?"

6. Heard the learned counsel appearing for the parties on both

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the questions, which are raised. None of the counsels appearing for

the parties have disputed that the contract to sell the suit property

entered into between the parties on 10-5-1980, would not be

enforceable, if the permission of the Collector is not obtained or

granted. It was thus a contingent contract covered by Section 32 of

the Indian Contract Act, 1872, which is produced below :

"32. Enforcement of contracts contingent on an event

happening.-- Contingent contracts to do or not to do anything if an uncertain future event happens cannot be enforced by law

unless and until that event has happened.

If the event becomes impossible, such contracts become void."

It is also not in dispute that the plaintiff and the defendant both

applied to the Collector for grant of permission to sell the property,

and that has been rejected. It is this factum of rejection of permission

which makes the agreement in question unenforceable.

7. The question as to whether the plaintiff has fulfilled all the

terms and conditions or has followed the procedure for obtaining the

permission from the Collector, would not be of much relevance, for

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the reason that the contract itself provides the consequence of

cancellation of agreement and the delivery of possession to the

plaintiff. If the contract itself is void and unenforceable in law in

terms of Section 31 of the Indian Contract Act, then the defendant

would not be entitled to protection under Section 53-A of the Transfer

of Property Act. The additional substantial question of law is answered

accordingly.

8.

Coming to the first substantial question of law regarding

limitation, it was not a suit for specific performance of contract filed

by the plaintiff, and hence the lower Appellate Court has committed

an error of law in holding that it is governed by Article 54 of the

Limitation Act. The suit would be governed by Article 65 of the

Limitation Act, and the limitation of twelve years specified therein

would start running from the date when the possession of the

defendant becomes adverse to the plaintiff. It is not the case of the

defendant that he became the owner of the property on the basis of

adverse possession. At any rate, the suit was filed in the year 1991,

i.e. within a period of twelve years from the date of the agreement

to sell dated 10-5-1980. Hence, it cannot be said that the suit was

barred by the law of limitation. The lower Appellate Court has

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committed an error of law in holding that the suit was governed by

Article 54 of the Limitation Act, and hence it being filed beyond the

period of three years, was barred by the law of limitation. The

substantial question of law is answered accordingly. In view of this,

the second appeal needs to be allowed by restoring the decree passed

by the Trial Court.

9. In the result, the second appeal is allowed. The judgment

and order dated 21-4-1995 passed by the lower Appellate Court in

Regular Civil Appeal No.311 of 1991, is hereby quashed and set aside,

and the decree dated 30-9-1991 passed by the Trial Court in Special

Civil Suit No.102 of 1991 is restored. No order as to costs.

JUDGE.

Lanjewar

sa273.95.odt

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